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Taxpayers’ loss as state offices fight in court

Sunday August 17 2014

Attorney General Githu Muigai at his office in Nairobi on May 19, 2014. Prof Muigai said the State Law Office received at least 10 constitutional petitions daily, some of which can be solved outside the court. PHOTO | FILE | BILLY MUTAI | NATION MEDIA GROUP

In Summary

Prof Muigai said the State Law Office received at least 10 constitutional petitions daily, some of which can be solved outside the court.

“It is very expensive to always run to court when we have a host of other avenues that can be used to resolve differences,” said Dr Mutunga.

Court battles among various State departments have seen taxpayers lose billions of shillings paid to lawyers and other attendant costs.

Several government agencies are going for each other’s throats in court over what the Attorney-General says could be solved by arbitration.

“There is a growing culture where government institutions and Kenyans are becoming litigious on every issue under the sun,” said Attorney-General Githu Muigai when he appeared before the Senate Committee for Justice and Legal Affairs last week.

Prof Muigai said the State Law Office received at least 10 constitutional petitions daily, some of which can be solved outside the court.

“I was shocked to see the Independent Policing Oversight Authority moving to court to block the issuing of recruitment letters to 10,000 recruits. The law requires these agencies to first exhaust mediation as a mechanism of dispute resolution,” said Prof Muigai.

“It is very expensive to always run to court when we have a host of other avenues that can be used to resolve differences,” said Dr Mutunga.

The Constitution recognises alternative dispute resolution. Specifically, it requires the Judiciary to promote reconciliation, mediation, arbitration and traditional dispute resolution mechanisms as long as they are not repugnant to justice and morality or are inconsistent with the Constitution.

Other approaches of resolving disputes in a non-confrontational way include negotiation between two parties, a multiparty negotiation, through mediation to consensus building.

THE PLAYERS

From Ngilu-Swazuri wars to the JKIA inferno NLC Vs Ministry of Lands:The National Land Commission has taken the Lands Ministry to the High Court to have their mandates clearly defined. Last Monday, the NLC filed a case seeking an advisory opinion on its role and mandate in relation to land administration and management.

The case was orchestrated by a gazette notice by Lands Cabinet Secretary Charity Ngilu renewing leases from August 1 which NLC felt was its mandate. Through Prof Tom Ojienda (right), the NLC contends that’s the CS had, on several occasions, published land registration regulations without consulting it, yet it feels that is its mandate.

“This will certainly foster confusion in the administration of land which is in dire need of reform,” says the NLC.

It comes after the commission went to the Supreme Court seeking advisory opinion on various aspects revolving around the role and mandate of the CS in relation to regulation of land use and property in the country. The petition is yet to be heard and determined.

IPOA VS NATIONAL POLICE SERVICE COMMISSION

The independent Policing Oversight Authority moved to the High Court seeking the nullification of the July 14 recruitment of 10,000 officers.Ipoa said the recruitment was conducted unconstitutionally, leading to hue and cry from the public.The exercise attracted a barrage of criticism after it emerged that it was riddled with corruption, nepotism, tribalism and interference.Ipoa wants to stop the recruits from reporting for training. It also wants senior officers involved in the exercise charged with misuse of public funds, and has requested that the Kenya National Audit office audits the funds used in the recruitment. The matter is before Lady Justice Mumbi Ngugi, who has ordered that the recruits should not be given admission letters until the case is heard and determined.

GOVERNORS VS SENATORS:

The Council of Governors has also moved to court to challenge the legality of the County Governments Amendment Act 2014 that introduced County Development Boards to be chaired by senators.

The governors have dismissed the Act as unconstitutional, arguing that they are the chief executives of county governments and it would, therefore, be prejudicial to create such an organisation. The Bill was brought to the National Assembly after the Controller of Budget exposed massive mismanagement of funds allocated to the county governments.

However, the Bill has since been signed into law by President Kenyatta. That is what the governors want the court to reverse. The chairman of the Council of Governors, who is also Bomet Governor, says the law goes against the Constitution.

“We strongly object to the passage into law of the County Government Amendment Act 2014 which seeks to introduce County Development Boards chaired by the senator. It is gravely prejudicial to create an agency dealing with development and such a body fails to recognise the development role of the governor at the county level,” he says.

Mr Ruto also says the new law interferes with the principle of separation of powers and that the Senate was a legislative and not an implementing body.“Section 54 of the County Governments Act has already created a county inter-governmental forum chaired by the governor, for the harmonisation and coordination of development,” he says.

The governors have said that they do not agree with Senate and the national Executive on this matter and have engaged Senior Counsel Paul Muite to pursue the case on their behalf.

KENYA AIRWAYS VS KENYA PORTS AUTHORITY:The national carrier moved to court this week seeking a Sh320 million compensation following a fire which gutted part of the Jomo Kenyatta International Airport in August last year.

Kenya Airways, which has calculated its claim against Kenya Airports Authority at Sh250 million, says the destruction caused by the fire was due to the agency’s negligence.

Kenya Airways says in its application filed at the High Court that the loss and damage was occasioned by the fact that the authority failed to provide adequate firefighting equipment and services and to properly administer, control and manage the airport.

“Kenya Airports Authority failed to take reasonable and efficient measures whether by inspection or examination, to ensure that there would be no risk of fire arising from any electrical or other faults in the premises,” says Kenya Airways.

The authority is also accused of failing to conduct maintenance of the premises and safety devices, including fire alarm systems and electronic equipment at JKIA.

KENYA VS KENYA REINSURANCE:

Last Tuesday, the High Court stopped the taxman from collecting a claim of more than Sh1.2 billion from the Kenya Reinsurance Corporation Services.KRA had made the claim following a recommendation by audit firm KPMG in January 2013 that the reinsurer was not withholding tax payments on resident and non-resident brokers yet this is tax deductible.

However, Kenya Re accused the commissioner of domestic taxes of violating its rights by demanding the payments, arguing that the amounts being asked for were not eligible for taxation.

Lady Justice Mumbi Ngugi, however, issued an injunction after the re-insurer filed the suit following fears that KRA would attach its assets and freeze its accounts.

“The respondent claims the payments by Kenya Re to the non-resident insurance companies were compensation for providing an underwriting opportunity to Kenya Re,” said Nazim Malik, who is representing the insurer.